November 2014

In a land-mark decision that will surely provide fodder for those concerned with privacy rights in Canada, the Supreme Court of Canada (the "SCC") has issued a decision on October 17, 2014 which grants private litigants access to wiretap recordings obtained in the course of a criminal investigation conducted by the Competition Bureau.

Context and Case History

Between 2004 and 2006, the Competition Bureau conducted an investigation dubbed operation "Octane" in connection with suspicions of price fixing of retail gasoline prices in the cities of Victoriaville, Thetford Mines, Sherbrooke and Magog. These investigations eventually led to criminal charges being laid against 54 corporations and individuals.

In the wake of these criminal proceedings, a class action was instituted against some of the accused as well as against other defendants who had not been subject to charges. To support their claim, class counsel moved to obtain the recordings and transcripts of conversations which the Competition Bureau had obtained through its wiretapping operation. Some of the defendants objected. They argued that wiretapping is a significant infringement on privacy rights and needs to be authorized by a judge beforehand. Intercepting communications without a warrant is a serious criminal offence in Canada. Given its nature, the evidence so gathered is confidential, except to the limited extent that is required for criminal prosecutions. Allowing the evidence gathered by criminal investigators to be passed on to private parties would, according to the defendants, allow private parties to circumvent this legal regime, seriously expose the private lives of countless individuals, and ultimately undermine the whole criminal investigation process.

In July 2012 the Superior Court of Quebec granted the class counsel's request and ordered that the Competition Bureau and the Director of Public Prosecutions ("DPP") provide class counsel and their experts with the wiretap recordings. The Quebec Court of Appeal denied leave to appeal this decision on December 21, 2013.

Essentially, the SCC was called upon to address the following question: Can a court of civil jurisdiction order the disclosure of electronically recorded conversations which were obtained in the course of a criminal investigation?

SCC Decision

The SCC dismissed the appeals and confirmed the Quebec Superior Court decision, thereby permitting the recordings and transcripts to be communicated to class counsel.

The SCC recognized that privacy is a fundamental right and that the interception of private conversations is a very serious threat to this right. It also accepted that the Criminal code makes it a criminal offence to intercept and record private communications save in very limited circumstances. It did not accept however that private communications intercepted by law enforcement authorities should be used for the sole purpose for which they were obtained, which is crime prevention and prosecution.

In the context of the Octane investigation, the Competition Bureau was granted permission to proceed with a wiretap operation. From then on, according to the SCC, the debate was not centered on the law enabling the interception of the conversations, but rather on the discovery rules applicable to the communication and production of the evidence so obtained in civil litigations.

In Quebec, it is the Civil Code of Procedure (the "CCP") which allows parties in civil actions to request that third parties produce evidence relevant to their case. In assessing such requests, the civil courts must balance all interests at stake, including the privacy rights of all parties concerned.

In this case, the Superior Court had set certain safeguards to third parties who could be affected by the disclosure of these wiretaps by allowing that the wiretaps be communicated to counsels involved in the class action and their experts only. The SCC reviewed this and concluded that the lower court has properly balanced the need for greater disclosure with the infringements to the privacy rights of the third parties concerned that would follow from the decision. The SCC concluded that on balance, the safeguards afforded to third parties were sufficient in light of the need for full disclosure.

Commentary

The decision is likely to have profound implications for Canadians across the country. First, from now on, parties to civil proceedings in Canada may be granted access to intercepted conservations obtained under warrant by public authorities. The ramifications of this astounding development in Canadian Law have yet to be fully assessed. The conversations of thousands of ordinary Canadians, who may, for instance, have been intercepted as part of an investigation on somebody else, no longer benefit from all the guarantees and protections afforded by the warrants required under Criminal Law. They can now potentially be accessed by private parties having an interest in some private court case, and they could be potentially exposed to the public by such parties. In practice, the SCC is letting the lower courts decide, on a case-by-case basis, whether the access to evidence from criminal investigations is permissible. The SCC has provided an overview of certain parameters which should be factored in while determining whether such evidence should be given to private litigants.

Another significant element is how to deal with the burden and the cost of providing this information to private parties. In the case of the Octane investigation, the Competition Bureau is said to have recorded hundreds of hours of private conversations. It will take months if not years for the Competition Bureau employees to re-listen to the tapes, black out what needs to be blacked out, organize the information and deliver it to the private parties concerned. Public resources which could otherwise be deployed to other public matters will inevitably be redirected to assist class claimants in their private ventures. In the words of Justice Abella, who was the only dissenting judge on the bench, civil litigants now "benefit indirectly from an extraordinary investigative technique they are otherwise not legally entitled to".

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.